* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 98-2021
v. (D.C. No. CIV-96-1735-JP) ELLISTON CALLWOOD, (D. NM)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining Defendant’s brief and the appellate record, this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral ar gument. Defendant, a prisoner in the Federal Correctional C enter in Florence, Colorado, was convicted on six charges involving po ssession and distribution of1 We grant Defendant’s motion to proceed in forma pauperis pursuant to 28

U.S.C. § 1915(a)(1). -2- marijuana and the use or carrying of a firearm unde r 18 U.S.C. § 924(c) in the United States District Court for the District of Ne w Mexico. His convictions were affirmed on appeal to this court. See United States v. Callwood , 66 F.3d 1110 (10th Cir. 1995). Defendant then filed apro se 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence in which he alleged ineffective assistance of counsel and various errors by the trial court an d claimed that his firearms convictions were invalid under Bailey v. United States , 516 U.S. 137 (1995). The district court adopted the magistrate judge’s Propo sed Findings and Recommended Disposition and denied and dismissed th e motion. Defendant seeks to appeal the district court’s dismissal of h is section 2255 motion and requests a certificate of appealability. 1 On appeal Defendant makes the following arguments: (1) The district court was without jurisdiction to try and convict him; (2 ) the court erred in dismissing his section 2255 motion without an evidentiary hear ing; (3) his firearms convictions are invalid because of the court’s fail ure to give a proper jury instruction on 18 U.S.C. § 924(c); and (4) his appo inted trial counsel was ineffective. Defendant also requests this court to order an evidentiary hearing on each of these issues.2 We note that the Supreme Court’s recent clarificat ion of the meaning of

“carry” under 18 U.S.C. § 924(c) does not change th e result in this case. See Muscarello v. United States , U.S. , 118 S. Ct. 1911 (1998). -3- After thoroughly reviewing the record, we conclude that Defendant has not “made a substantial showing of the denial of a cons titutional right.” 28 U.S.C. § 2253(c)(2). Despite Defendant’s argument to the contrary, the district court’s original jurisdiction is well settled. See 18 U.S.C. § 3231; United States v. Lampley , 127 F.3d 1231, 1246 (10th Cir. 1997), cert. denie d , U.S. , 118 S. Ct. 1098 (1998). We agree with the findings and re commendation of the magistrate judge, as adopted by the district court in its Order filed December 31, 1997, that none of the issues presented by Defendant gives rise to relief under 18 U.S.C. § 2255. 2 See also United States v. Durham , 139 F.3d 1325, 1334-1336 (10th Cir. 1998) (holding that conviction of using and carrying a firearm was valid after Baileybecause the jury’s verdict “necessarily embraced a ll the elements of a ‘carrying’ violation”) (citation omitted), petition for cert. filed , (U.S. June 22, 1998) (No. 97-9687). Because the re cord conclusively shows that Defendant is entitled to no relief, the district co urt did not err by dismissing the motion without a hearing. See 28 U.S.C. § 2255. Accordingly, we decline to-4-

issue Defendant a certificate of appealability and dismiss the appeal. DENIED and DISMISSED.
Entered for the Court

Monroe Mckay Circuit Judge